Ramachandran v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY, THE 15 [ TH ] DAY OF NOVEMBER 2023 / 24TH KARTHIKA, 1945 ``` ``` CRL.REV.PET NO. 3591 OF 2008 ``` ``` AGAINST THE JUDGMENT DATED 18.08.2008 IN CRL.APPEAL NO.154/2007 OF SESSIONS COURT, KOZHIKODE ``` ``` SC 399/2004 OF PRINCIPAL ASSISTANT SESSIONS COURT, KOZHIKODE ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` RAMACHANDRAN, AGED 51 YEARS, ``` ``` S/O.KANARAKUTTY, ANDYAMPARAMBATH HOUSE, NADAVALOOR AMSOM, EANTHAD DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. ``` ``` BY ADV SRI.SANTHARAM.P ``` ## **`RESPONDENTS/RESPONDENTS/COMPLAINANT:`** - **`1 EXCISE INSPECTOR, CHELANNUR.`** - **`2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.`** ``` SMT. NIMA JACOB, PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.R.P No.3591 of 2008 2 ## **O R D E R** This revision is at the instance of the accused in Sessions Case No.399 of 2004 on the file of the Principal Assistant Sessions Judge, Kozhikoded, assailing the judgment in Crl.Appeal No.154 of 2007 on the file of Sessions Court, Kozhikode, which upheld his conviction and sentence under Section 8(1) and 8(2) of the Abkari Act. 2. The prosecution case is that on 09.11.2000, at 8.35 a.m., PW1 and Excise party, while on patrol duty, found the revision petitioner carrying two litres of illicit arrack in a plastic can, near the shop of one Mr.Bapputty. The contraband was seized and the revision petitioner was arrested. After complying with the legal formalities like sampling, sealing etc., the revision petitioner along with the records and the contraband were produced before the Excise Range Office and thereafter, before the jurisdictional Magistrate Court. PW5 investigated the case and laid charge sheet against the revision petitioner under Section 8(1) and 8(2) of the Abkari Act. 3. On appearance of the accused before the trial court, Crl.R.P No.3591 of 2008 3 charge was framed, read over and explained under Section 8(1) and 8(2) of the Abkari Act, to which he pleaded not guilty and claimed to be tried. The prosecution examined PWs 1 to 6 and marked Exts.P1 to P7 and identified MO1 to prove its case. On closure of the prosecution evidence, the revision petitioner was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought on record and DW1 was examined from his side as defence evidence. 4. On hearing rival contentions from either side, and on analysing the facts and evidence, the trial court found the revision petitioner guilty under Section 8(1) and 8(2) of the Abkari Act and he was sentenced to undergo rigorous imprisonment for a period of one year and fine of Rs.1,00,000/-, with a default sentence of rigorous imprisonment for three months. 5. Aggrieved by the conviction and sentence, the revision petitioner preferred Crl.Appeal No.154 of 2007. The appellate court, on a reappreciation of the facts and evidence, found that there was no ground to interfere with the conviction and sentence imposed by the trial court and so the appeal was Crl.R.P No.3591 of 2008 4 dismissed upholding the judgment of the trial court, against which, he has preferred this revision petition. 6. Now this Court is called upon to verify the legality, propriety and correctness of the concurrent findings of conviction and sentence imposed by the trial court as well as the appellate court. 7. Heard learned counsel for the revision petitioner and learned Public Prosecutor. 8. PW1, the detecting officer and PW6, the preventive officer, who has accompanied him, gave testimony in tune with the prosecution case. PWs 2 and 3, the independent witnesses turned hostile to the prosecution. Learned counsel for the revision petitioner contended that no such seizure was effected from the revision petitioner on 09.11.2000 from near the shop of Bapputty and he pointed out various reasons to disbelieve the case of the prosecution. 9. The contraband and the sample bottle reached the jurisdictional Magistrate Court on 09.11.2000, i.e., the date of detection itself. The forwarding note also was produced before court on the same day, and the sample was forwarded to the Crl.R.P No.3591 of 2008 5 Chemical Laboratory as per reference letter dated 09.11.2000. But that sample reached the Laboratory only on 04.12.2000, with a delay of about one month. That delay is not at all explained by the prosecution. 10. The prosecution is duty bound to establish the link evidence to prove that the sample, which was drawn from the liquid seized at the place of occurrence itself, was produced before the court and it was the very same sample which reached the hands of the Chemical Examiner. The inordinate delay in reaching the sample, which was sent from the court to the Chemical Examiner’s Laboratory was not explained by the prosecution and it gives room for doubting the genuineness of the sample which reached the Chemical Examiner’s Laboratory. The benefit of that doubt should go to the revision petitioner. 11. When there is delay in reaching the sample before the chemical examiner, there is no assurance that the sample seized from the accused reached the hands of the chemical examiner, in a tamper proof manner. In **Krishnadas v. State of Kerala [2019 KHC 191]** , this Court had occasion to consider the impact of delay in reaching the sample before the Crl.R.P No.3591 of 2008 6 laboratory and it was held that when there is no explanation for the delay caused, it is a suspicious circumstance, and the benefit of that suspicion must go to the accused. 12. Another contention taken up by the revision petitioner is that there was inordinate delay in completing investigation and filing the final report before the court. Though the detection was on 09.11.2000, the final report was seen filed on 28.02.2004. The witnesses were seen questioned by the investigating officer only on 19.12.2003, i.e., after three years of the occurrence. The prosecution failed to explain satisfactorily the delay in conducting investigation and in filing the final report. In **Kumaran P. v. State of Kerala and another [2016 (5) KHC 632 : 2016 (4) KLT 718]** , this Court reiterated the necessity to complete the investigation and to file the final report in Abkari cases without delay. If there is delay, prosecution was bound to explain it satisfactorily, or else, the benefit of that doubt will go to the revision petitioner. ## 13. In **Moothedath Sivadasan v. State of Kerala [2021** **(1) KLT 744]** , this Court held that as per Section 50 of the Act, every investigation into the offences under the Act shall be Crl.R.P No.3591 of 2008 7 completed without unnecessary delay. The delay involved in that case was only two years. But in the case on hand, the delay is more than three years and it is not at all explained by the prosecution. So it is fatal to the prosecution case. 14. Learned counsel for the revision petitioner pointed out that, going by the prosecution case, the detection and arrest of the revision petitioner was in front of the shop of Mr.Bapputty. He was examined as DW1. DW1 deposed before court that while the revision petitioner was purchasing some provisions from his shop, the Abkari Officials took him into custody. He has not seen the revision petitioner holding a can containing illicit liquor and the Excise Officials arresting him and seizing the contraband. When the testimony of DW1 is read along with the testimony of PWs 2 and 3, the independent witnesses, who turned hostile, learned counsel for the revision petitioner would submit that no incident as alleged by the prosecution occurred on 09.11.2000. 15. The delay of about one month in reaching the sample before the Laboratory, after it was sent from the court and the delay of more than three years in completing the investigation Crl.R.P No.3591 of 2008 8 are circumstances to doubt the genuineness of the prosecution case. The testimony of PWs 2 and 3, and DW1 makes that doubt stronger. The revision petitioner is entitled to get the benefit of that doubt. 16. For the reasons aforementioned, it has to be held that the prosecution failed to prove the guilt of the revision petitioner beyond reasonable doubt. So the conviction and sentence imposed on the revision petitioner by the trial court as well as the appellate court are liable to be set aside. 17. In the result, the revision petitioner is found not guilty of the offence punishable under Section 8(1) and 8(2) of the Abkari Act and he is acquitted under Section 235(1) of Cr.P.C. His bail bond is cancelled and he is set at liberty forthwith. The revision petition accordingly stands allowed. Sd/- **SOPHY THOMAS, JUDGE** DSV/-